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  • By: Jacqueline Goralczyk

Part 1 - Power of Attorney, Health-Care Proxy or Living Will - What Are They & Why Do I Need them?!

Updated: Jul 12, 2022

This is part 1 of a 3-part series on why estate planning is crucial to everyone regardless of your age. In this series we will explore tips on what to look out for when creating your estate plan, and what you should know when settling the estate of a loved one. As difficult as it may be to have, this is not a conversation you should put off. So, let’s get started!

A common misconception is that estate planning is only for the elderly or sick. Most commonly, people will either wait too long to develop a comprehensive estate plan or neglect it altogether.

  • Many people shy away from the conversation because they are uncomfortable discussing death

  • Some avoid getting started because of the costs they think they’ll incur

  • And others don’t value (or understand) the power that these estate planning documents wield and would rather leave everything up to their survivors to figure out.

The fact of the matter is every adult should have advanced directives and a validly executed will. The discussion of a last will and testament will be covered in a later segment, but it should be noted that at the bare minimum these are the documents that everyone should have. What I want to emphasize with you now is the importance of creating the three documents known as your advanced directives. These include:

  1. Power of Attorney (POA)

  2. Health-Care Proxy (HCP)

  3. Living Will (LW)

Power of Attorney

A POA is a document that allows someone to appoint another person to make non-medical decisions on their behalf. The person being granted this responsibility is called an “agent,” or “attorney-in-fact.” The person appointing the agent to act on their behalf is called the “principal.” This authority will take effect immediately upon execution, meaning the agent will have the power granted to them to act on behalf of the principal even while the principal still possesses the capacity to act and make decisions for themselves. In these situations, it is critically important to make sure that the person being given this authority is someone who the principal can trust.

While executing a POA, the principal does have the ability to limit the amount of authority they give to their agent, but even a small amount of power and responsibility can be abused. Even with the potential risks, this document is important to have. It is important to plan for any possible scenario that may arise in the future. In the event that you are unable to act for yourself, you would still have bi

lls that would need to be paid, and possibly income that may need to be directed to certain accounts, even for a short while. Without naming an agent, the people responsible for looking after you would not be able to have access to your accounts to keep your finances in check.

Health Care Proxy

A HCP is similar to a POA in the sense that it is a document that allows a person to appoint someone else to make decisions on their behalf. However, unlike a POA which can grant the authority to make almost any financial decision, a HCP is meant to grant someone the power to be able to make medical decisions on their behalf. A major difference is that it does not take effect until the person granting their authority no longer has the capacity to make decisions for themselves. As long as an individual is of sound mind, and not incapacitated they are in charge of their own health care treatment.

Living Will

In addition to the HCP, a LW should also be completed. This allows the individual to expressly state what life sustaining mea

sures, or lack thereof, they want to be taken if the situation presents itself. This can include, but is not limited to, such measures as a feeding tube and hydration being administered, or certain surgical procedures being performed to resuscitate the individual. The individual can also state that they wish not to be resuscitated, and would not like any extraordinary measures to be taken at the end. While the living will allows the individual to state their own wishes, it is almost impossible to plan for every situation that may arise in the future. As a result, supplementing the living will with the health care proxy allows the person being given the authority to make health care decisions, the ability to fill in any potential gaps where the living will may not provide the direction necessary.

These three advanced directives, covering everything from financial management decisions to health care decisions are incredibly important when beginning to develop an estate plan. They are the foundation for a comprehensive estate plan that will ease the burden of close family members and caregivers in a potentially stressful and volatile situation, when they may not know what action to take next.

Written by David Troiano, Esq.

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